Citation Nr: 1329990 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-46 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1968 to September 1971, to include service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). A travel Board hearing was held before the undersigned in September 2011. A transcript of this hearing is of record. The Veteran's claim on appeal was initially characterized as a claim of service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that [VA] obtains in support of the claim. The Board therefore finds that the Veteran's claim is not limited solely to PTSD. Instead, as he has been diagnosed as having major depression not otherwise specified, the claim is properly characterized broadly as a claim of service connection for an acquired psychiatric disorder, to include PTSD and major depression. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran's primary assertion is that he suffers from PTSD as a result of multiple in-service stressor. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). In the case at hand, the Veteran underwent a VA PTSD examination in July 2011. The examiner concluded that the Veteran did not meet the full DSM-IV criteria for PTSD. Rationale was provided as to how the criterion needed to fulfill a diagnosis of PTSD had not been met. However, while the Board appreciates the thoroughness of the July 2011 VA examination, it was conducted without the review of all of the Veteran's pertinent treatment records. During the September 2011 travel Board hearing, the Veteran reported receiving regular treatment for PTSD at the Auburn-Gresham Community Based Outpatient Clinic (also known as the Chicago Vet Center) since 2005. Vet Center records dated in October 2008 and July 2011 similarly reference a long history of treatment for PTSD since June 2008. Indeed, the October 2008 report notes that the Veteran underwent a psychiatric examination that diagnosed him as having PTSD. None of those records are on file. The Board regrets any further delay in this case. However, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, remand is required to obtain the outstanding records. Following receipt of these records, the claims file should be returned to the July 2011 VA examiner for an addendum opinion as to whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. The Veteran also maintains that he was first diagnosed with a skin rash in service, and continues to have outbreaks of skin rashes currently. The service treatment records show that he was treated in June 1970 for tinea versicolor of the thorax. Tinea versicolor was also noted on his September 1971 separation examination report. Following service, a June 2008 VA outpatient treatment record notes the Veteran's history of tinea corporis, currently in remission. The Veteran underwent a VA skin examination in July 2011; however, no active lesions were found. In an October 2008 Notice of Disagreement and in September 2011 hearing testimony, the Veteran stated that he had outbreaks of his skin rash in hot weather. The Board believes that the Veteran should be afforded another VA examination to determine whether he has a current skin disability related to the in-service treatment for tinea versicolor. Because the Veteran has stated that his skin condition is exacerbated during hot weather, all efforts should be made to schedule the VA examination during that period of time when he is more likely to experience a flare up of his skin condition. See Ardison v. Brown, 6 Vet. App. 405 (VA examination inadequate because it was not performed during a time when the veteran's tinea pedis was active.) Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should contact the Veteran and obtain the names and addresses and approximate dates of treatment of all medical care providers, VA and non-VA that treated him for an acquired psychiatric disability, to include PTSD, since September 1971. After the Veteran has signed the appropriate releases, those records not already in the claims file should be obtained and associated with the claims file. Regardless as to whether or not he responds, a specific search should be conducted for records of treatment from the Auburn-Gresham Community Based Outpatient Clinic (also known as the Chicago Vet Center) dated from 2005 to the present. All attempts to procure records should be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, schedule the Veteran for a new VA psychiatric examination. The examination should include all necessary diagnostic testing and evaluation. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. The examiner should respond to the following: (a) The examiner must confirm the existence of any current acquired psychiatric disorders, making specific findings regarding whether the Veteran satisfies the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria of the American Psychiatric Association for respective diagnoses, including PTSD. Specifically confirm whether the Veteran has a current PTSD diagnosis. The examiner should reconcile his or her opinion with the opinions found in the July 2011 VA PTSD examination and the Vet Center and VA treatment records. (b) If the examiner confirms a current PTSD diagnosis, then opine whether it is at least as likely as not (50 percent probability or greater) that it is attributable to any in-service stressor. (c) Exclusive of PTSD, if the examiner confirms the existence of any other currently diagnosed psychiatric disability (whatever the specific diagnosis), then opine whether it is at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The Veteran also should be scheduled for a VA skin examination. The examination should be scheduled during a period of claimed exacerbation, which the Veteran indicated occurs during hot weather. The claims file should be provided to the examiner for review in conjunction with the examination. After reviewing the file, the examiner should provide a diagnosis of the Veteran's skin disability, if any, and render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that this skin disability is related to disease or injury incurred during service, to include the diagnosis of and treatment for tinea versicolor therein. 4. After undertaking any further development deemed warranted, the RO or the AMC should readjudicate the Veteran's claims of entitlement to service connection for an acquired psychiatric disability (to include PTSD) and a skin disability in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).